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[Hershey Letterhead]
The Hershey Company
100 Crystal A Drive
Hershey, Pennsylvania 17033
January 12, 2006
Re: The Hershey Company
Amendment No. 1 to Registration Statement on Form S-3
File Number 333-128375
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549-7010
Attention: Jason Wynn, Esq.
Dear Mr. Wynn:
As previously requested, attached hereto as Exhibit A please find
disclosure relating to certain matters discussed in the response letter of The
Hershey Company (the "Registrant"), dated December 14, 2005, addressed to the
staff of the Division of Corporation Finance (the "Staff") of the Securities and
Exchange Commission (the "Commission"). The Registrant undertakes to include
this disclosure in its Annual Report on Form 10-K for the fiscal year ended
December 31, 2005.
In addition, in the event the Staff has no further comments with
respect to the above-referenced registration statement, pursuant to Rule 461
under the Securities Act of 1933, as amended, the Registrant hereby requests
that the above-referenced registration statement be declared effective at 9:30
a.m. Washington D.C. time, on Tuesday, January 17, 2006, or as soon as
practicable thereafter.
The Registrant hereby acknowledges the following: (i) should the
Commission or the Staff, acting pursuant to delegated authority, declare the
filing effective, it does not foreclose the Commission from taking any action
with respect to the filing; (ii) the action of the Commission or the Staff,
acting pursuant to delegated authority, in declaring the filing effective, does
not relieve the Registrant from its full responsibility for the adequacy and
accuracy of the disclosure in the filing; and (iii) the Registrant may not
assert Staff comments and the declaration of effectiveness as a defense in any
proceeding initiated by the Commission or any person under the federal
securities laws of the United States.
2
Please feel free to contact A.J. Kess of Simpson Thacher & Bartlett LLP
at (212) 455-2711 or Reza Odouli of Simpson Thacher & Bartlett LLP at (212)
455-2693 with any questions or concerns regarding any of the foregoing.
Very truly yours,
THE HERSHEY COMPANY
By: /s/ Burton H. Snyder
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Name: Burton H. Snyder, Esq.
Title: Senior Vice President, General
Counsel and Secretary
3
Exhibit A
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To be included in PART 1, Item 1. Business
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The most significant raw material used in the production of the Company's
chocolate products is cocoa. The Company buys a mix of cocoa beans and cocoa
products, such as cocoa butter, cocoa liquor and cocoa powder, to meet its
manufacturing requirements. These commodities are imported principally from Far
Eastern, West African and South American equatorial regions. West Africa
accounts for approximately 70 percent of the world's crop of cocoa beans. Cocoa
beans are not uniform, and the various grades and varieties reflect the diverse
agricultural practices and natural conditions found in the many growing areas.
While civil unrest in the Ivory Coast, the world's largest cocoa-producing
country, has resulted in volatile prices, the Company believes a significant
disruption of cocoa supplies from the Ivory Coast is unlikely. In the event such
disruption does occur, the Company believes cocoa from other producing countries
and from current physical cocoa stocks in consuming countries would provide a
significant supply buffer. Historically there have been instances of weather
catastrophes, crop disease, civil disruptions, embargoes and other problems in
cocoa producing countries which have caused price fluctuations, but have never
resulted in total loss of a particular producing country's cocoa crop and/or
exports.
To be included in the MD&A under Capital Structure
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The Milton Hershey School Trust maintains voting control over the Company.
However, the Milton Hershey School Trust has not taken an active role in setting
policy for the Company, nor has it exercised influence with regard to the
ongoing business decisions of the Company's Board of Directors or management.
The Milton Hershey School Trust decided to explore a sale of the Company in June
2002, but subsequently decided to terminate the sale process in September 2002.
After terminating the sale process, the Trustee of the Milton Hershey School
Trust advised the Pennsylvania Office of Attorney General in September 2002 that
it would not agree to any sale of its controlling interest in the Company
without the approval of the court having jurisdiction over the Trust following
advance notice to the Office of Attorney General. Subsequently, Pennsylvania
enacted legislation that requires that the Office of Attorney General be
provided advance notice of any transaction that would result in the Milton
Hershey School Trust no longer having voting control of the Company. The law
provides specific statutory authority for the Attorney General to intercede, and
petition the court having jurisdiction over the Trust to stop such a transaction
if the Attorney General can prove that the transaction is unnecessary for the
future economic viability of the Company and is inconsistent with investment and
management considerations under fiduciary obligations. This legislation could
have the effect of making it more difficult for a third party to acquire a
majority of the Company's outstanding voting stock and thereby delay or prevent
a change in control of the Company.